FTC: Just Not Powerful Enough?

One of the last things the Senate did before breaking for the Memorial Day recess was appoint conferees to the financial regulation bill, S. 3217, now H.R. 4173. One area we hope the Senate sticks to its guns on is refusing to accept House language that would turn the Federal Trade Commission into even-more-powerful regulatory agency.

The provisions in question would eliminate procedural safeguards that were imposed upon FTC rulemaking decades ago, after Congress determined the Commission had repeatedly overstepped its regulatory authority. The legislation couples this unrestrained rulemaking authority with enforcement powers to seek civil penalties for unfair or deceptive acts or practices; to seek such penalties without coordinating with the Justice Department; and to pursue companies that allegedly provide “substantial assistance” in an FTC Act violation, even without actual knowledge of the violation. Taken together, these provisions grant such sweeping powers that the FTC could essentially act as an unelected legislature governing industries and sectors across the economy.

There has been remarkably little debate on the consequences of reversing the considered decisions of two earlier Congresses. In particular, there has been no opportunity for affected industries to appear at a hearing to present their concerns about the potential effect of these provisions on American commerce and our economic future. A proposal for Congress to delegate such sweeping new regulatory authority deserves more thorough deliberation.

Now that the opportunities for hearings on this specific legislative vehicles have been exhausted, the conference committee should just drop the FTC-authority-expansion language. If the House wants to pursue the Ueber-FTC as separate legislation, then that debate will shed light on the proposal.

We can’t imagine Americans want an unrestrained, unaccountable federal agency with authority over all economic activity.